On April 29, 2014 an evenly divided Pennsylvania Supreme Court in Barrick v. Holy Spirit Hospital upheld a lower court ruling holding that communications between a party’s attorney and a party’s expert witness are exempt from disclosure during discovery. This case was previously discussed in “Pennsylvania Supreme Court Evenly Divided on Discoverability of Attorney-Expert Communications“. In that blog post we noted that there was a proposed amendment to Pennsylvania Rule of Civil Procedure 4003.5 that would afford absolute protection from disclosure to attorney-expert communications and that it would be interesting to see what effect the order of the divided court would have on the proposed amendment.
On July 10, 2014, the Supreme Court addressed the proposed amendment by officially amending Rule 4003.5. Under new Rule 4003.5(a)(4), which goes into effect on August 9, 2014, a party may not discover the communications between another party’s attorney and any expert. This is true regardless of whether the expert is expected to testify at trial. Additionally, a party may not discover draft expert reports and any communications between another party’s attorney and experts relating to such drafts.
Based on the amendment, there is no longer any doubt. Going forward, in any civil case in the Pennsylvania state courts, communications between an attorney and an expert are not discoverable.
Jennifer M. Horn is a Partner at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.
Matthew L. Erlanger is an Associate in the Construction Group.